Marko Novak

The concept of legal consciousness is important for legal theory and the connection between legal theoryLegal theory (legal theorists), legal sociologyLegal sociology and legal psychology. The authors of this volume treated the concept of legal consciousnessConsciousnesslegalLegal consciousness primarily from the aspect of legal theory, referring, above all, to the tradition of European Legal Realism. The goal of this contribution is to present each author′s fundamental insights about legal consciousness connected in a unique and systemized structure.

One of the most important parts of Alf Ross’ legacy as a legal scholar is his concept of legal consciousness. This concept would even nowadays be relevant, and could find support in Jung’s psychological typology, which has not been refuted by modern psychology. With its taxonomy of attitudes (introversion and extraversion) and cognitive functions (of evaluation: thinking and feeling; as well as perception: sensation and intuition), Jung in fact deals with individual consciousness. This could, however, be extended to the level of collective consciousness following the teachings of certain sociologists (like Durkheim) and cultural psychologists. Revisiting the concept of legal consciousness would certainly benefit from post-Jungians who have done studies of psychological typology in the social context. Moreover, there has been an attempt at understanding the concept of law through the prism of Jung’s psychological typology [See Novak, in The Type Theory of Law: An Essay in Psychoanalytic Jurisprudence, Springer (2016)]. This is why it seems important to see the overlaps and differences between Ross’ concept of legal consciousness and Jung’s understanding of individual consciousness in order to contribute not only to the contemporary appreciation of Ross’ legal consciousness but also to the development of this very important legal concept.

This book is based on presentations and discussions at the special workshop "The concept of Legal Consciousness" held on July 7, 2022, in Bucharest, Romania, as part of thirtieth biennial World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR). The workshop was focused on the importance of this concept for legal theory, legal sociology, and legal psychology ("psychology and law"). The book consists of fourteen contributions divided into four thematic parts elaborating the following topics: concept of law, methodology of legal sciences, role of legal consciousness in legal theory and legal sociology, adjudication, constitutionalization, modification of the legal system, and the deliberate normative change.

Gilbert's kisceral argumentation is, roughly speaking, about arguing based on intuitions. In the forefront of such a (rhetorical) model are arguers and audiences, who resolve disagreements using kisceral arguments. Intuitions as reasons were more important in pre-modern law, when the law was not as explicit, precise, and determinate as today. Law influenced by religion or religious law was a typical example. In our much more secular modern era, intuitions are more or less subordinated to the (legal) logical mode of arguing. However, in tough legal cases, when logic "runs out," it is values that decide them. Not surprisingly, neuroscience and cognitive psychology have shown a strong connection between values and intuition.

This volume presents a Type Theory of Law (TTL), claiming that this is a unique theory of law that stems from the philosophical understanding of Jung's psychological types applied to the phenomenon of law. Furthermore, the TTL claims to be a universal, general and descriptive account of law. To prove that, the book first presents the fundamentals of Jungian psychological types, as they had been invented by Jung and consequently developed further by his followers. The next part of the book describes how the typological structure of an individual determines their understanding of law. It then addresses the way in which inclusive legal theory can be understood based on this typology. Finally, the book describes the TTL in general and descriptive terms and puts it into context. All in all, the book shows how the integral or inclusive approach to understanding the nature of law is not only in tune with our time, but also relevant for presenting a more persuasive picture of law than the older exclusivist or dualist approaches of strict natural law and rigid legal positivism did.

This paper discusses how an understanding of Jung's psychological types is important for the relevance of Gilbert's multi-modal argumentation theory. Moreover, it highlights how the types have been confirmed by contemporary neuroscience and cognitive psychology. Based on Gilbert's approach, I extend multi-modal argumentation to the area of legal argumentation. It seems that when we leave behind the traditional fortress of “logical” legal argumentation, we "discover" alternate modes that have always been present, concealed in the theoretically underestimated rhetorical skills of arguers.

A classic debate in the history of philosophy is that between rationalists and empiricists concerning the “true” source of human knowledge. In legal philosophy this debate has been reflected in the classic opposition between natural law and legal positivist perspectives. Even the currently predominant inclusivist perspectives on the nature of law, such as inclusive legal positivism and inclusive legal non-positivism, are not immune to such a dichotomy. In this paper I attempt to present an understanding of specific cognitive characteristics of prevailing legal theories from the perspective of the theory of psychological types as developed by Carl G. Jung